In re Johnathan M.

Filed 6/17/10 In re Johnathan M. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Peter Fagan, Temporary Judge (pursuant to Cal. Const., art. VI, 21) and Dwayne K. Moring, Judge. Affirmed.

Johnathan M. appeals from an adjudication by the juvenile court that he committed felony burglary (Pen. Code,[1] 459, 460), felony theft in excess of $400

( 487, subd. (a)), and vandalism in excess of $400 ( 594, subds. (a), (b)(1)). At the disposition hearing, the court placed Johnathan under the supervision of the probation department with various terms and conditions, including orders to complete 40 hours of community service and pay $3,082 in restitution and $219 in fines. Johnathan challenges the sufficiency of the evidence of all of his convictions on grounds the circumstantial evidence is too weak to support a conclusion that he committed those offenses, and is contradicted by other relevant and substantial exculpatory evidence. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On November 18, 2008, Christopher W., then 14 years old, left school early and at 12:05 arrived at his house where he lived with his sister Cassandra, another brother, and their mother, Martha Hamilton. Christopher unlocked the front door and saw that his home was "wrecked." He looked through the blinds from the inside of the house and saw Johnathan and Spencer A. on the patio of his back yard. Johnathan was a student at Vista High School, and on that day the school lunch period began at 12:01 p.m. and ended at 12:33 p.m.

Christopher was friends with Johnathan from middle school and they had never had grudges or fights. Christopher did not know Spencer, though both Johnathan and Spencer had previously been at his house with Cassandra. Christopher saw Johnathan breaking his camera, throwing it on the ground. He had left the camera on the nightstand in his bedroom. Eventually, Johnathan stopped breaking the camera and the boys ran toward the front of the house. The doorbell rang, and Christopher answered the door to see them standing there. They exchanged a brief greeting and Christopher told them to come in. Johnathan looked at the house and asked what happened. Christopher responded that it looked like the house got wrecked and robbed. At Johnathan's suggestion, Christopher went to his mother's bedroom to call the police. He then returned to the living room where Johnathan and Spencer remained. The dispatcher asked Christopher who was present at the house; he told her his friends Johnathan and Spencer. The minor and Spencer "then . . . just said bye. They said peace and then went out the back side." Christopher saw them walk toward Vista High School.

The house had milk spilled on the floor and the furniture was wet with milk, orange juice and other condiments from the kitchen. Papers and bills had been dumped around the house. Someone had written the words, "Jon wasn't here" on the wall[2] and drew a marijuana leaf and the number 420, which was a reference to smoking marijuana. There was urine in the master bedroom on Christopher's bedding and on the master bathroom vanity.

Christopher's 21-year-old sister Cassandra received a phone call at 12:14 p.m. from Johnathan. She had been friends with Johnathan through her brother. He asked her if he and his friend could come over and smoke in her backyard, which she had previously allowed him to do. She told him he could when she arrived home from work. He responded, Okay. Fine. I'll see you later," without mentioning the burglary of her home. When she arrived home around 1:00 p.m., she saw her large fish tank had been dumped, many personal items were damaged, and her laptop and $100 in cash were missing. She never recovered her laptop, which she had been told was worth approximately $900. Cassandra did not give Johnathan permission to enter her home that day. Christopher's mother estimated the damage to their home to be at least $4000.

Deputy Sheriff Zachary Harris conducted a curb-side line up with Johnathan and Spencer, who were both identified by Christopher as the boys at his house. He testified that he had compared Spencer's shoe with a shoe print found in baby powder on an office mat, and determined that they were an exact match and were from the same shoe.

San Diego County Deputy Sheriff Thomas Byrne investigated the burglary, and interviewed both Johnathan and Spencer about the incident after they were pulled out of their classrooms. Johnathan denied being in the home's backyard or breaking the camera. When Deputy Sheriff Byrne asked Johnathan about his sneaker prints, he told the officer that he had walked around the house and that was how his prints got into Christopher's bedroom. Spencer told the officer he and Johnathan were in the backyard during their lunch period to "hang out" and noticed the back slider was open and that the house was ransacked or thrashed. He told the officer that Johnathan went to the front of the house and rang the doorbell, and then they returned to school. Spencer also told the officer that he thought two other Vista High School students by the first name of Roy and Dylan had possibly been at the house because they had ditched school that day. Spencer said those students wore Vans sneakers. The officer never recovered any of the property belonging to the victims from either Johnathan or Spencer.

Exhibits introduced into evidence at trial revealed that none of the DNA or fingerprints found in the home belonged to Johnathan or Spencer.

DISCUSSION

I. Standard of Review

In determining the sufficiency of the juvenile court's findings, the test is whether, after reviewing the entire record in the light most favorable to the court's judgment or order, there is evidence that is reasonable, credible and of solid value such that a reasonable trier of fact could find the offense was committed beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 396; In re Roderick P. (1972) 7 Cal.3d 801, 809; In re Brandon G. (2008) 160 Cal.App.4th 1076, 1079 [applying substantial evidence standard to juvenile adjudication and findings].) Under this standard, "[w]e presume in support of the judgment the existence of every fact the trier of fact reasonably could deduce from the evidence, and if the circumstances reasonably justify the trier of fact's findings as to each element of the charged offense, we must affirm even if the circumstances and evidence would support a contrary finding." (Brandon G., at pp. 1079-1080, citing People v. Rodriquez (1999) 20 Cal.4th 1, 11.)

Further, " '[i]t is axiomatic that an appellate court defers to the trier of fact on such determinations, and has no power to judge the effect or value of, or to weigh the evidence; to consider the credibility of witnesses; or to resolve conflicts in, or make inferences or deductions from the evidence. We review a cold record and, unlike a trial court, have no opportunity to observe the appearance and demeanor of the witnesses. [Citation.] "Issues of fact and credibility are questions for the trial court." [Citations.] It is not an appellate court's function, in short, to redetermine the facts.' " (In re S.A. (2010) 182 Cal.App.4th 1128, 1140, quoting In re Sheila B. (1993) 19 Cal.App.4th 187, 199-200.)

The standard of review is the same in cases where the People rely primarily on circumstantial evidence. (People v. Maury, supra, 30 Cal.4th at p. 396.) This court must accept logical inferences that the trier of fact might have drawn from that evidence. (Ibid.) "Under the relevant standard of review, circumstantial evidence is not insufficient simply because it is ' " 'susceptible of two interpretations, one of which suggests guilt and the other innocence.' " ' " (People v. Rabanales (2008) 168 Cal.App.4th 494, 510.) The testimony of a single witness is sufficient to support a conviction unless the testimony is physically impossible or inherently improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181; Rabanales, at p. 510.)

II. Felony Burglary

Burglary is committed when a "person . . . enters any house, room, apartment . . . [or] other building . . . with intent to commit grand or petit larceny or any felony[.]"

( 459; People v. Montoya (1994) 7 Cal.4th 1027, 1041; see People v. Lawrence (2000) 24 Cal.4th 219, 232-233.) Entry with the proscribed intent constitutes the completed crime of burglary regardless of whether any felony or theft actually is committed. (People v. Allen (1999) 21 Cal.4th 846, 863, fn. 18; see also Montoya, at pp. 1041-1042.) It does not matter whether a person who enters a house with larcenous or felonious intent does so through a closed door, an open door, or a window. (People v. Nunley (1985) 168 Cal.App.3d 225, 231.)

The requisite intent is rarely shown by direct proof, but may be inferred from facts and circumstances. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541.) Consequently, evidence such as theft of property following entry may create a reasonable inference that there was intent to commit theft at the time of entry. (Ibid., citing In re Leanna W. (2004) 120 Cal.App.4th 735, 741; see also People v. Lewis (2001) 25 Cal.4th 610, 643.) A conviction does not require evidence that the defendant be found in possession of stolen property, nor does it require that witnesses see the defendant in the act of committing the break-in. (See People v. Hinson (1969) 269 Cal.App.2d 573, 577.) If the defendant is present at the scene, consciousness of guilt may be implied by a hasty departure. (Id. at p. 579.)

Johnathan contends that his burglary conviction is not supported by substantial evidence. Pointing to the absence of physical evidence of his fingerprints or DNA in the home or testimony placing him inside the home before the offenses occurred, he maintains there is no evidence proving beyond a reasonable doubt he entered the victim's home forcibly or otherwise, or that he aided and abetted Spencer in doing so. Though he concedes he was present in the backyard with the camera, he argues his mere presence outside the residence is not sufficient to establish burglary. He also maintains there is no evidence he removed the camera from the home and his "brief possession" (italics omitted) of that item is not enough to establish his illegal entry. Finally, he maintains there is undisputed evidence exonerating him, namely, school records that show he left school at 12:01 p.m. and was in the victim's backyard at 12:05 p.m., leaving insufficient time to commit the crimes. As we explain, we are not persuaded by these arguments.

Concededly, "[p]ossession alone of property stolen in a burglary is not of itself sufficient to sustain the possessor's conviction of that burglary"; there must also be "corroborating evidence of acts, conduct, or declarations . . . tending to show [the defendant's] guilt." (People v. Citrino (1956) 46 Cal.2d 284, 288, italics added; see also People v. McFarland (1962) 58 Cal.2d 748, 754.) However, when possession is shown, the corroborating evidence "need only be slight . . . ." (People v. Mendoza (2000) 24 Cal.4th 130, 176; McFarland, at p. 754; Citrino, at p. 288.)"Where recently stolen property is found in the conscious possession of a defendant who, upon being questioned by the police, gives a false explanation regarding his possession . . . an inference of guilt is permissible and it is for the [trier of fact] to determine whether or not the inference should be drawn in the light of all the evidence." (McFarland, 58 Cal.2d at p. 755.)

Here, there is such corroborating evidence. Christopher found Johnathan in the backyard of his extensively vandalized and burglarized home with the patio door open, in possession of an item of stolen property. Johnathan's access to the house and possession of Christopher's camera, which Christopher had left inside the house on his dresser, is sufficient circumstantial evidence for a reasonable jury to infer Johnathan had entered the home with intent to steal. That Johnathan left the house knowing police were on their way, and then lied to police about his presence in the backyard or his handling of the camera, is evidence tending to establish his consciousness of guilt. (See People v. Hinson, supra, 269 Cal.App.2d at p. 579; People v. Frye (1985) 166 Cal.App.3d 941, 947.) It is of no moment that a reasonable trier of fact might just as easily infer Johnathan merely came upon the camera in the backyard and left Christopher's home to return to school; it is not our role to redetermine the facts where contrary inferences might be drawn in favor of Johnathan's innocence. (People v. Rabanales, supra, 168 Cal.App.4th at p. 510.) We cannot discount the reasonable inferences that may be drawn from all of the facts and circumstances; the juvenile court's finding as to burglary has ample support based on this circumstantial evidence.

Johnathan notes his entry into the home might be inferred from his possession of the camera. However, relying on cases he characterizes as " 'dual participant' burglary cases" including People v. Brady (1987) 190 Cal.App.3d 124, People v. Macedo (1989) 213 Cal.App.3d 554, and People v. Forte (1988) 204 Cal.App.3d 1317, he argues the evidence that others participated in the crime should make it "difficult[]" to attribute entry to only one single defendant. He argues that he cannot reasonably be convicted under these circumstances where, given the absence of physical evidence, it is "equally possible that the unidenitifed owners of the DNA, fingerprints and sole prints entered without him . . . ."

These arguments are without merit. The reasoning of the cited authorities on which Johnathan relies that a person may be found guilty as an aider and abettor only if he or she formed the requisite intent to commit, encourage or facilitate the offense prior to or during entry by the perpetrator was expressly disapproved in People v. Montoya, supra, 7 Cal.4th at pp. 1039-1040 [disapproving Brady, Macedo, and Forte as inconsistent with the analysis of People v. Cooper (1991) 53 Cal.3d 1158].) Under the substantial evidence test summarized above, it is not fatal to Johnathan's burglary conviction that the evidence demonstrates others were present at the scene and may have participated in the crimes; it is enough that the evidence warrants an inference of guilt drawn by the juvenile court, as we have concluded above. We disagree that the evidence amounts to mere speculation.

Finally, we decline to overturn Johnathan's conviction based on the evidence concerning Johnathan's school lunch period. The school attendance record does not establish that Johnathan "left school on the lunch [hour] that starts at 12:01," it shows he was marked present at the beginning of the period before lunch and was late to arrive in class after the lunch period. There is no direct evidence that Johnathan was in the class for the entire period. Accordingly, the school attendance record does not constitute direct exculpatory evidence precluding any physical possibility that he could have committed the offenses.

III. Felony Vandalism

Conceding the house was considerably damaged, Johnathan contends there is insufficient evidence to support the vandalism finding. As with his foregoing argument, he argues the prosecution did not place him inside the home during the commission of the vandalism with physical or other evidence, and thus we should consider only the value of Christopher's camera with which he was connected. He argues under these circumstances, we cannot uphold the juvenile court's findings because there was no direct testimony or evidence as to the camera's value.

It is of no moment that the record contains no evidence of the dollar value of the camera.[3] As we have explained above, the circumstantial evidence permits a reasonable inference that Johnathan entered the home with the intent to steal, and this evidence, combined with evidence that he was breaking property from within the home, is sufficient to support the true finding on the vandalism charge.

IV. Grand Theft

Johnathan contends there is insufficient evidence of any taking to support the juvenile court's finding of grand theft. Again, he argues his presence at the scene is not enough by itself to support the finding, and he points out no witnesses testified he possessed any items of the victim's personal property other than the camera. He argues that if the finding of theft is upheld based on his possession of Christopher's camera, it cannot be grand theft because the camera's value was not established.

To prove the offense of grand theft, the People must present evidence establishing "the taking of personal property [exceeding $400 in value] from the owner, into the possession of the criminal without the consent of the owner or under a claim of right, the asportation of the subject matter, and . . . the specific intent to deprive the owner of his property wholly or permanently. The requisite intent may be shown circumstantially." (People v. Walther (1968) 263 Cal.App.2d 310, 316; see People v. Davis (1998) 19 Cal.4th 301, 305; 487, subd. (a).) If the taking has begun, "the slightest movement of the property constitutes a carrying away or asportation." (Davis, at p. 305.) The trespass is not traditional trespass onto real property but trespass for goods carried away. (Ibid.)
It is not necessary that Johnathan be actually found in possession of stolen property worth over $400 to sustain his conviction for grand theft. Here, the People presented evidence that property of a sufficient value had been taken from the victim's residence. Cassandra testified her laptop computer worth approximately $900 and $100 in cash was missing from her room. As we have explained, it was for the trier of fact to draw fair inferences from the evidence. Evidence of Johnathan's possession of the stolen camera and access to the house, as well his lies to police concerning his presence at the scene, is sufficient corroboration to prove guilt of grand theft. We conclude there is sufficient direct and circumstantial evidence to support the juvenile court's finding as to grand theft. (Accord, People v. Mosqueira (1970) 12 Cal.App.3d 1173, 1175-1176 [both opportunity to commit theft and possession of stolen property, which is reasonably inferred from the evidence, supported grand theft conviction though each was not sufficient alone]; People v. Lathrop (1940) 37 Cal.App.2d 341, 345 [evidence that stolen equipment was found in an abandoned car and that defendant approached the car and unloaded the equipment into his own car to transport it to Los Angeles was sufficient to support grand theft conviction even though the defendant denied knowing the equipment was stolen or that he assisted anyone in taking them; under those circumstances, it became a jury question to determine whether to believe the defendant's story].)

DISPOSITION

The judgment is affirmed.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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[1] All statutory references are to the Penal Code unless otherwise indicated.

[2] The name written on the wall was spelled, "Jon" rather than John.

[3] Christopher was asked whether the camera was his property, and whether he remembered how much it cost. He responded, "It was just a one [sic] that comes from like Wal-Mart or something. I got it from my mom, actually."